Section 230 Explained: What the 1996 Law Protects, Where It Fails, and How Congress Should Fix It
Wednesday's Cross-Examination: The liability shield that built the internet was written for passive hosting. Your feed stopped being passive a long time ago.
It Starts With Twenty Six Words
Twenty six words run the American internet. That is the length of the main sentence inside Section 230, a law written in 1996, back when getting online meant a modem screeching through the wall of somebody’s bedroom. The sentence says a website will not be treated as the publisher or the speaker of something a user posted. A second part of the law protects a website that takes down garbage in good faith. Two ideas on one page, and thirty years of fallout.1
Congress wrote it because of one court ruling, and the story behind that ruling is wild. In May 1995, a judge in Nassau County, New York decided that an early online service called Prodigy counted as the publisher of a post written by an anonymous user, and the judge pointed to four things Prodigy had done: it posted rules for users, it ran software that screened out dirty words, it paid volunteers to clean up its message boards, and it advertised itself as a family friendly place. Look at who filed that lawsuit.
The company suing Prodigy was Stratton Oakmont, the Long Island brokerage run by Jordan Belfort, the firm Martin Scorsese later turned into The Wolf of Wall Street. An anonymous user on a Prodigy message board had accused that firm and its president of criminal fraud. The firm sued Prodigy for two hundred million dollars over the post. In December 1996, securities regulators threw Stratton Oakmont out of the industry for running the kind of scheme that user had described.
The case settled in October 1995. Prodigy apologized publicly, and no money changed hands. The ruling still stood long enough to teach every website in America a lesson, and it was the wrong lesson: leave the sewage alone and you stay safe. Four years earlier, a federal judge in Manhattan had let a different service, CompuServe, walk away from a similar lawsuit for the opposite reason, because CompuServe never looked at user posts before they went up.
Congress said no.
The official report that came with the new law said the goal in plain writing, which was to wipe out the Prodigy decision.
What The Shield Protects For You
Most people hear about this law only when a politician is yelling about Big Tech. The shield reaches further than that. It is why your neighborhood Facebook group runs without a lawyer reading every post first. It is why a restaurant has no case against Yelp over your one star review, and that restaurant stays free to sue you personally for what you wrote. It is why a small town paper keeps its comment section open and a nonprofit runs a support forum on almost no money. The shield covers the giants. It also covers a woman running a knitting forum out of her spare bedroom. And the shield has never been total, because federal crimes, copyright and trademark claims, federal wiretap law, and a 2018 change aimed at sex trafficking all sit outside it.
That last part matters. Congress has already cut into this law once and the internet survived.
Live Video Today
What controls what you see, hear, and read on your phone every day?
Today, independent journalist Meredith Ogilvie-Thompson is hosting me on Substack Live for a conversation about Section 230, the FCC, and what the latest developments already mean for all of us between now and the midterm elections in November.
With a 25-year career spanning war zones to boardrooms, Meredith knows how to ask the questions that matter. With my 40 years of practicing law, I know how to answer them in a way that makes it easy to understand.
This isn’t just about policy. It’s about who shapes the information you receive, and why you need to pay attention.
Join us live today (Wednesday) at 2 p.m. ET / 11 a.m. PT
The Wires Started Making Choices
The original internet platforms you used were static. They gave you a place where you could share your thoughts and information. They were like the electrical wires in your house providing energy and lights. You would not sue the electrician who wired your house over the fight that broke out at your dinner table. He ran the cable, hung the outlets, went home before dessert. The words in that room belonged to the people in that room. Section 230 was built on that same common sense.
Here is what changed.
